This article is written by Abhinav Pandey. He is a Content writing intern at Legal Thirst.
The research project deals with the research about the problems arising on the unavailability of a Uniform Civil Code. It discusses the problems that the Country is facing nowadays and differential treatment of citizens, owing to their personal laws. India is a multi-religious and multi-lingual country that is divided into many facets, yet united by a nationalist spirit. All people are today governed by their personal laws with respect to marriage, succession, divorce, etc.
If we see at the preamble of the Constitution there is a term secular and the citizens are guaranteed their freedom of religion and being a secular State, it should not interfere in the matter of individuals’ religion. Indian secularism imposes a negative command on the State not to identify with any specific religion and treat its citizen with the spirit of “ Sarva Dharma Sambhav ” It has been argued by a few scholars that the Indian society is not socially developed enough to utilize the “Uniform civil code” [Herein after UCC and thus UCC is still is a topic of discussion in Indian context]. The reason behind it, as the researcher has observed, is that India is a vast country with diverse cultures, religions, etc. Enforcement of UCC can be seen as an unnecessary imposition of State law, which would infringe on many religious practices and cultures.
Unification of tribes will be another challenge, in case UCC becomes a reality. India still has a wide coverage of tribal population that prefers to be governed by their customs and was promised freedom of such practice. Secular procedural laws and other pieces of legislation also create an exception in this regard. To bring a UCC throughout the Country in recent times would need an exceptional consensus amongst the common
Keywords: Secularism, Uniform Civil Code, Gender equality,
The constitution of India does not define secularism but still, India is a secular nation. Over the years the term secularism has been understood differently or we can also say misunderstood. The country is filled with people who follow different religions like Islam, Hinduism, Christianity, Buddhism, Sikhism, etc. It was included in the preamble after the 42nd Amendment in 1976. The word secular means that no citizen will be discriminated against by any religion and will be free to practice and follow any religion in the country. Due to different religions, there are different personal laws set up for the citizens of the country. There is no homogeneity in respect of personal laws. This is one of the main problem arising in today’s world because of the variety the women gets deprived of rights. To solve all the problems Uniform Civil Code can be enacted in the country. The Uniform Civil Code means uniform personal laws for all people. Personal matter includes divorce, marriage, maintenance, succession, etc. Personal laws are different from public laws. The UCC is mentioned in our constitution under article 44 of DPSP. It is based on the argument that it is pointless to connect religion and law together. This concept is criticized by many as it is considered an infringement of article 25 of the Indian constitution. The aim of the paper is to approach the concept of UCC in a more effective and efficient way to make sure that it can be properly implemented in India and also see whether it is suitable for a country like India or not
LEGISLATIVE EFFORTS MADE ON THE PART OF THE GOVERNMENT
Though it was rightly pointed out in the Constituent Assembly that not all Hindus were in favor of UCC. But, UCC has been permanently associated in the Indian mind with opposition by the Muslims. They felt that the personal law of inheritance, succession, etc. is really a part of their religion. If that were so, Indian women can never be given equality with a man who is enshrined in Art.14 of the Constitution. Art. 15(1) provides that “the State shall 11 Art 14, The Constitution of India. 12 Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others, AIR 1995 SC 1531 13 Destha Kiran, Uniform Civil Code In not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.” 14 Hindus have been comparatively more accepting of a modern uniform law theory. Several laws have been legislated from the British era till date, the most recent amendment being in the succession Act, with respect to the coparcenary inheritance.
1. During British Period
Indian Succession Act 1865, which was also one of the first laws to ensure women’s economic security, attempted to shift the personal laws to the realm of civil. The Marriage Act of 1864 reformed Christian marriages. There were law reforms passed that were beneficial to women like the Hindu Widow Remarriage Act of 1856, Married Women’s Property Act of 1923, and the Hindu Inheritance (Removal of Disabilities) Act, 1928
The All India Women’s Conference (AIWC) provided its disappointment with the male-dominated Legislature this statement was given by the Lakshmi Menon at the AIWC conference in 1933, “If we are to seek divorce in court, we are to state that we are not Hindus, and are not guided by Hindu law. The members in the Legislative assembly who are men will not help us in bringing any drastic changes which will be of benefit to us.” The women’s organizations demanded a UCC to replace the existing personal laws, basing it on the Karachi Congress Resolution which guaranteed gender equality.
The Special Marriage Act, which gave another option to the Indian citizens of civil marriage, was enacted first in 1872. It had a limited application because it required those involved to renounce their religion and was applicable only to Hindus. The later Special Marriage (Amendment) Act, 1923 provided that Hindus, Buddhists, Sikhs, and Jains marry under their personal laws.
2. After the British period
Hindu code bill: The first Prime Minister of the Indian republic, Jawaharlal Nehru, his supporters, and women members wanted a uniform civil code to be implemented by this bill. The Hindu bill itself received more criticism and the main provisions 14 Jain M.P., Indian Constitution Law opposed were those provisions which is related to monogamy, divorce, abolition of women coparcenaries rights, and inheritance to daughters. The Hindu Code Bill failed to control the prevalent gender discrimination. The laws related to divorce was giving both partners equal rights but the majority of its implementation is initiated by the men. Since the Act applied only to Hindus, women from the other communities remained subordinated. For instance, Muslim women, under Sharia law, could not inherit agricultural land. Nehru accepted that the bill was not complete and perfect, but was cautious about implementing drastic changes which could stir up specific communities. He agreed that it lacked any substantial reforms but felt it was an “outstanding achievement” of his time. The Special Marriage Act, 1954, provides a kind of civil marriage to any Indian citizen irrespective of their religion, thereby permitting every Indian to marry someone outside the religion. The law was applied to all of India, except Jammu and Kashmir. In many respects, the act was almost identical to the Hindu Marriage Act of 1955. The Special Marriage Act allowed Muslims to marry under it and thereby retain the protections, generally beneficial to Muslim women that could not be found in the personal law. Under this act polygamy was illegal, and inheritance and succession would be governed by the Indian Succession Act, rather than the respective Muslim Personal Law.
After the passing of the Hindu Code Bill, the personal laws in India had two major areas of application: the common Indian citizens and the Muslim community, whose laws were kept away from any reforms. The frequent conflict between secular and religious authorities over the issue of a uniform civil code eventually decreased, until the 1985 Shah Bano case. Bano was a 73-year-old woman who sought maintenance from her husband, Muhammad Ahmad Khan. He had divorced her after 40 years of marriage by triple Talaaq (saying “I divorce thee” three times) and denied her regular maintenance; this sort of unilateral divorce was permitted under the Muslim Personal Law. She was initially granted maintenance by the verdict of a local court in 1980. Khan, a lawyer himself, challenged this decision, taking it to the Supreme Court, saying that he had fulfilled all his obligations under Islamic law. The “maintenance of wives, children, and parents” provision (Section 125) of the Criminal procedure code, is applied to all citizens irrespective of religion. It is further suggested that a UCC be set up. Besides her case, two other Muslim women had previously received maintenance under the Criminal code in 1979 and 1980.
An independent Muslim parliament member proposed a Bill to protect their personal law in the parliament. The Muslim Women’s (Protection of Rights on Divorce) was passed in 1986, which made provision for Maintenance under Section 125 of the Criminal Procedure Code wherein would not be applicable to Muslim women.
A CRITICAL REVIEW OF AVAILABLE LAWS
The UCC is not a part of the fundamental right but it is part of the Directive Principle of State Policy that’s why no special laws are available about this matter. Some statutes and laws provide the provision related to the uniform civil code.
A futile attempt was made in the direction of UCC by the judiciary through the Shah Bano verdict. But the Government of India went ahead in passing the Muslim Women (Protection of Rights on Divorce) Act, 1986 making sections 125-127, of the Criminal Procedure Code optional to divorce, Muslim Women muted law can’t be far ahead of the society which would lack social legitimacy. And for this, the mandate of Article 44 is that The State shall endeavor to secure which recognizes the fact that the different personal laws do exist in the country and need to be uniform in their applicability. The Constitution of India in Article 44 enjoins, The State shall endeavor to secure for the citizens a UCC throughout the territory of India. It has been over 7O
years, yet we have not been able to attain that level of sophistication to accept and adopt the Constitutional mandate.
The last fifty years have been a sad waste of time. There has been no collection of relevant information about the numberless semi-visible groups and communities, and no exposure of the masses to the idea of the UCC. There has been no draft bill of it . The words UCC have not been considered properly. Do we want a Uniform Civil Code or a Common Code? Are these two same? Do we want to put together a Common Code which borrows all that is best from existing personal laws in India? We have not put our minds to these questions. Moreover, is there an existing ‘perfect’ law to be taken as a standard for other personal laws to be legislated?
There is no clarity in the provisions of the Constitution itself as the preamble makes India a secular state as the term “secularism” added by the 42nd Amendment in the Constitution and on other hand for its governance state has to interfere in the personal laws of the citizens as being a secular State it should not do this. And furthermore, Our Constitution guarantees freedom of conscience and free profession, practice and propagation of religion, and freedom to manage religious affairs by Articles 25 and 26. Article 44 also has been very cleverly worded in as much as it does not say that all personal laws should be abrogated and that the proposed UCC imposed on all citizens.
– There are so many controversial debates and opinions as the researcher found regarding UCC.
– The Indian society is not up to that mark which can utilize UCC.
JUDICIAL INTERPRETATION WITH RESPECT TO UNIFORM CIVIL CODE AND SECULARISM
Even after more than five decades since the framing of the Constitution, the idea of UCC under Article 44 is it to be achieved. However, efforts in this discretion continued as reflected in various pronouncements of the Supreme Court from time to time.
– Sarla Mudgal (Smt.), and others v. Union of India and others
Kuldeep Singh while delivering the Judgement directed the Government to implement the directive of Article 44 and to file an affidavit indicating the steps taken in the matter and held that “Successive governments have been wholly remiss in their duty of implementing the Constitutional mandate under Art. 44. Therefore, the Supreme Court requested the Government of India, through the Prime Minister of the Country to have a fresh look at Art. 44 of the Constitution of India and Endeavour to secure for its citizens a UCC throughout the territory of India.” He also suggested the appointment of a committee to enact a Conversion of religion Act. R.M. Shahai, ., while agreeing with Kuldeep Singh, too agreed that “Ours is the Secular Democratic Republic. Freedom of religion is the core of our culture. But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentiality civil and material freedoms, are not autonomy but oppression,”
Shayra Bano v. Union of India
In a yet very recent judgment, the Apex court while joining six petitions on the subject matter invalidated the practice of Talak-ul -Biddat . It has been a victory for Muslim women with respect to their basic human rights and right 19 John Vallamattom vs. Union of India equality guaranteed under the Indian Constitution. The judgment though cannot be held in favor of UCC in the strict sense. The grounds for invalidating the said form of talak have primarily been the non-mandatory and unapproved practice under the respective Holy text of Muslims. The bench did not go into the question of violation of Fundamental Rights alone, mentioned in the Constitution. The answer to the question, of whether personal law can violate the Fundamental Right of any citizen seems to be negative. In presence of such judicial precedent, every provision of the personal law needs to be studied on a particular and specific level, that too, with respect to the respective religious text and not Constitution.
After studying the facts, judgments, and social history of our Nation and forming a holistic approach toward UCC, it can be concluded from the following observations. Some provisions of the Constitution make implementation complicated as Art 44 of the Constitution talks about UCC for the citizens and on other hand Art 37 states that “the provisions of Part 4 shall not be enforceable in any Court…” in the next part, it seems to have created a duty on the State to apply these principles in making laws, by stating “…but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” Therefore we can say that Art 37, makes it a duty of the State to make UCC for its citizens because it became fundamental in the governance of the Country. It appears to be a Duty against which there exists no legal right that can be enforced on the breach of such duty by the State.
If we see at the preamble of the Constitution there is a term secular and the citizens are granted freedom of religion and being a secular state, the state should not interfere in matters of an individual’s religion. On the other hand, we can say that individual right does not affect the unity and integrity
of India because religion is only a matter of individual faith which cannot be mixed with secular activities and can be regulated by the State enacting a law which is already held by the Supreme Court in the case of S.R. Bommai vs. Union of India
1.The Constitution of India by M.P Jain
2.Constituent Assembly Debates, Vol . VII , (1949)
3. Constituent Assembly Debates, Vol . VIII , (1949)
4.Chagla,M.C. Plea for Uniform Civil Code, Weekly Round Table, March 25, 1973
9.Oxford English dictionary
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